1 Some critical issues in employment dispute resolution 2 Dispute over salaries and bonuses 3 Termination of employment by the employee 4 Termination of employment by the employer 2
1.1. Compulsory pre-litigation mediation and short statute of limitations a. Compulsory pre-litigation mediation Almost all claims between an employee and an employer must go through pre-litigation mediation (at the local labor authority), except for disputes relating to: Compulsory social insurance and heath Dismissal or unilateral termination of insurance employment Compensation and allowances for Compensation between the employees termination of employment and the companies sending labor abroad Domestic workers (maids, helpers) Should consider asking the Court to dismiss the claims of the opposing party if such claims have not gone through pre-litigation mediation and do not fall within the above exceptions 3
1.1. Compulsory pre-litigation mediation and short statute of limitations a. Compulsory pre-litigation mediation SHOULD NOT make any statement or submit any document/evidence unnecessarily , the mediator does not have power to force you to do anything or make any conclusion about the case. However, anything you mention or submit during the process If you are summoned by could later be used against you at the Court. the local labor authority for a mediation meeting SHOULD make as much claims against the opposing party as possible (regardless of whether you have strong evidence or not); otherwise, your counterclaims filed at the Court in the later proceedings may be treated as “have not gone through compulsory pre- litigation mediation” and as a result, may be dismissed by the Court. 4
1.1. Compulsory pre-litigation mediation and short statute of limitations b. Short statute of limitations Statute of limitations for labor disputes is 01 year from the time of discovering the alleged violations, which is very short. Therefore, as a defendant in a labor dispute, you should: Check whether the statute of limitations has expired ; if it has, request the Court to dismiss the claims. Not make any official settlement offer or any other ways of admission of liability , because any partial admission of liability could make the statute of limitations for the whole case being re-started, i.e. the 01-year period will be re-counted from your admission. Without prejudice rule does not exist under the Vietnam law. If you plan to file any counterclaim against the opposing party, should ensure that you file within the 01-year statute of limitations . 5
1.2. Burden of proof and provision of documents In case of termination of employment (by the employer) and labor discipline, the burden of proof falls on the employer. These two cases are very disadvantageous for the employer because the employer must prove that every single step in the termination or discipline process strictly complies with the law. Without advice and review by an experienced litigator during the termination or discipline process, the employer often loses in these types of dispute. 6
1.2. Burden of proof and provision of documents In other cases, the burden proof will fall on the employee as the plaintiff. Should challenge the evidence of the employee and should not make any unnecessary admission of facts. No effective remedy to impose when the Company refuses to provide the information/documents. What if the Court orders the Company If the Company claims that they do not have or have to disclose the internal policies (as per lost the documents, there is no method for the Court requested by the employee)? to check such claim. 7
1.3. The employee uses newspapers to commit libel during the dispute During the dispute, the employee may use the newspapers to publish untruth and groundless accusation against the Company with the intention of pressuring the Company into settlement. In this situation the Company should consider: Filing a criminal denunciation Filing a complaint against the Filing a lawsuit against both against the employee. newspapers to the supervising the employee and the government agencies (e.g. Ministry of newspapers at the Court. Information and Communications). When seeing the Company taking strong actions, the third parties will question the accuracy of the news articles; the employee and the newspapers will also be afraid and stop their wrongful actions. 8
2.1. Net payments Although net payments (salaries, bonuses, allowances) are often used, there is no definition of net payments under the Vietnam law. This lack of regulations may lead to disputes in the future. For example: Under the tax law, for bonuses paid by shares, the PIT is not declared and paid at the time of receiving the shares; but instead, at the time of selling the shares in the future. Argue that : No need Argue that: Must pay All salaries and bonuses to pay additional additional shares to cover are paid in net. shares, the Company the future PIT, because net only covers tax payment means the withholds at the Company pays PIT. time of payment. In 2017, instead of paying bonus Employee B Company A by cash, Company A paid by shares with equivalent value. Should have clear definition and limitation of the Company’s obligations in case of using net payments. 9
2.2. Salary increments and bonuses Salary increments and bonuses are not compulsory, unless the Company makes specific commitments. While defending against claims of salary increments and bonuses, should not make any indirect admission of liability or make the burden of proof fall on you. For example: Defense 1 : The Company did not give salary Defense 2 : The Company does not make any promise increments and bonuses because the employee for salary increments or bonuses. failed to meet the performance standards. The Court will ask the company : The Court will ask the employee : Which standards the employee Which evidence shows that the failed to meet? Ordering the Company promise to provide Company to disclose the salary increments or bonuses? performance evaluation documents to prove the defense. 10
3.1. Training expenses The law provides that the Company can claim back the training expenses, in case the employee terminates the employment illegally and fails to complete the promised working period after the training course. If the labor contract is indefinite-term and the employee unilaterally resigns by sending a 45-day notice (as allowed by the law), will the employee need to reimburse the training expenses? If during the promised working period, the Company dismisses/terminates the employment with the employee, will the employee need to reimburse the training expenses? Should have a detailed training agreement to address these issues. 11
3.2. Non-disclosure agreement and non-competition agreement One of the issues most concerned by the Company is that their employees may disclose confidential information for competitors after resigning. Thus, many companies use non-disclosure agreement and non-competition agreement to minimize this risk. a. Are those agreements enforceable in Vietnam? b. What are the available remedies in case of breach? 12
3.2. Non-disclosure agreement and non-competition agreement a. Enforceability of the agreements This is a civil Non-disclosure agreement : It is Violation of the right agreement separate to work under the recognized and allowed by the law. from the labor Labor Code. contract. Non-competition agreement : There is no clear regulation relating to non-competition The Civil Code The employee is a recognizes the right agreement so its validity and enforceability weaker party and to freely enter into are arguable. must be protected. agreements. 13
3.2. Non-disclosure agreement and non-competition agreement a. Enforceability of the agreements How to maximize the chance of enforceability of the non-competition agreement? Separating the non-competition agreement from the labor contract (because the Labor Code strictly protects the employee and is very disadvantageous for the Company in this case) Reasonable limits of the non-competition (applicable time period, geographical area) Ensuring that the agreement is reasonable: What the employee will receive in return? 14
3.2. Non-disclosure agreement and non-competition agreement a. Enforceability of the agreements Should the non-disclosure agreement and non- competition agreement have arbitration clause, because the arbitrators may be more open-minded to accept these agreements? ARBITRATORS 15
3.2. Non-disclosure agreement and non-competition agreement b. Available remedies Claiming damages : Vietnam only recognizes compensatory damages (damages based on actual losses) so this remedy is not reliable in most cases because the actual losses are difficult to prove. Claiming penalty : Can be applied but must be stipulated clearly in the agreement. 16
3.2. Non-disclosure agreement and non-competition agreement b. Available remedies Can the Company ask for injunctions such as stopping the employee from using the information or from working for the competitors? Vietnamese judges often prefer safe, clear and common injunctions such as interim asset freezing. An injunction having a large scope is unlikely to be granted by the judge. Even if the judge agrees, can the enforcement agency enforce such injunctions in practice? 17
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